Crafting the International Criminal Court: Trials and Tribulations in Article 98(2)

Abstract

The dilemma of building agreement among state parties without diluting core principles often colors the process of international treaty-making. This challenge can be conceptualized as a trade-off between achieving consistency and building consensus. The tension between consistency and consensus in international treaty-making is arguably becoming more pronounced, particularly in international human rights law and in the growing field of international criminal law. This may be in part because those who violate humanitarian and human rights standards are becoming increasingly vulnerable to prosecution at the national and international levels. This paper explores the trade-off between consistency and consensus through an examination of negotiations during the fifth meeting of the Preparatory Commission for the International Criminal Court. It focuses on the negotiations over a proposed U.S. rule to article 98(2) of the Rome Statute, and suggests the implications of a preoccupation with consensus (as opposed to some form of supermajority principle) for the effectiveness of the ICC. In addition, the paper anticipates potential arguments for avoiding accountability before the ICC based on the rule to article 98(2), and it indicates the appropriate legal responses to such attempts.

Keywords: international criminal court, international law, rome statute